Critical Analysis Of The Emigration Bill, 2021

Problem With The Human Resource Agencies

Recruitment agents or the newly dubbed 'Human Resource Agencies' ("HRA") are essential for emigration. There were 1,454 registered agents in India as of July, 2020.^[5] Despite the fact that foreign employers can engage in direct recruitment themselves, 91% of emigration happen through agents in India.^[6] They use their skills to estimate the demand for labour globally, engage in talks with foreign employers, choose appropriate candidates, facilitate their journeys and act as a point of contact later on.^[7] Understanding the importance of HRAs, there were certain problems with the way their role was carved out in the Bill.

HRA has been defined under Clause 2 (m) of the Bill as an   "entity engaged in India in the business of recruitment for an employer…".

The term 'recruitment' has been extensively defined under Clause 2 (n)^[9]. A question that comes to mind is regarding the status of international recruitment agencies. Foreign/international recruitment agencies acting as a liaison between foreign employers and the Indian citizens is increasing at a rapid rate. For instance, college students who get placed under foreign employers may have gotten recruited through an international hiring agency. Since the ambit of the Bill extends to only Indian entities, will Indian emigrants recruited through foreign agencies be safeguarded from being exploited? Or will they be considered as an extension of the foreign employer and be seen as a form of direct recruitment? This is an inconsistency that the Bill has failed to address.

Another issue is with regard to the fees (often exorbitant) charged on the worker which is often specified to them at the time of registration. Indian workers generally pay a huge amount as for their jobs.^[10] Most often these charges are touted as charges for various related cost heads which includes service charges, travelling ticket, visa etc.^[11] It is the duty of the HRA to specify the charges that will be imposed on the emigrant at the time of registration.^[12] While the Bill provides for punishment for collecting excessive charges than what was initially agreed upon at the time of registration^[13], the issue of there being no upper limit to these charges still remain a big problem. This is contrast with the thirty thousand rupees limit set by the Emigration Rules, 1983.^[14]

As per a report published by the Ministry of External Affairs, there has been increasing number of complaints regarding registered agents charging exorbitant fees on emigrant workers than what the government has prescribed.^[15] Many a times the emigrants are desperate for employment opportunities which renders them very much vulnerable to the exploitative over pricing tendency of HRA's. A study conducted by the World Bank has reported that Indians usually pay between USD 1000- 3000 as fees for Gulf countries and as high as USD 4700 for other developed countries like Singapore.^[16] This leads them falling prey to further into poverty and debt traps.

As per the General Principles of International Labour Organisation ("ILO") "No recruitment fees or related costs should be charged to, or otherwise borne by, workers or jobseekers"^[17]. Moreover, under the Operational guidelines, it is the responsibility of the respective governments to ensure that recruitment charges and related costs are not being charged from the workers.^[18] It is also the responsibility of enterprises and public employment services for ensuring the same.^[19] These principles are derived from many primary sources of international law.^[20]

Moreover, Clause 31 (1) (ii) states that contravention with any of the provisions of the Bill will also impose liability of the emigrant to penalty up to fifty thousand rupees. This is prima facie unfair. The proponents of the sub clause may rely on the classical legal principle of ignorantia non excusat and may also argue that this reduces illegal emigration.^[21] Critics, however, would argue that many of the emigrants may be in a desperate state, may not know the intricacies of the law or may have been tricked by the HRA or arrived at such a situation due to a mistake attributable to the HRA.^[22]

Where the HRA has made the mistake of not complying with the law, it does not seem fair to penalise the emigrants. Moreover, criminalising emigrants does not go well with the purpose of the Bill, which is to protect emigrants.^[23] Criminalizing the choices that these workers make out of sheer desperation under this new proposed Bill doesn't align with the spirit of it being a social welfare legislation.^[24]

The fact that they may have their passports revoked, suspended or cancelled for non-compliance^[25] also contains the risk of HRA being in a dominant position over them and may discourage the emigrants to raise any complaints against them.

Additionally, Clause 15 (1) provides for grounds for cancellation or suspension of certificates issued to HRA. Clause 15 (5) mandates the competent authority to consider the provisions and arrangements made with persons with whom the HRA had transacted with in the course of business and pass appropriate orders. This includes passing an order allowing the HRA to continue its business with such persons. This is problematic as it leaves room for wide discretion to be exercised by the competent authority to determine such instances. A HRA which falls under any (or all) of the grounds for cancellation or suspension of certificate under Clause 15 (1) will still be able to continue its operations if it is in the good books of the authority. Such a provision fails the point of having specified objective criteria to determine cancellation or suspension.

Under Clause 17 (x), the HRA is tasked with the duty to ensure the compliance by sub-agents the standard prescribed by regulations. Critics have argued that this may not be feasible for a HRA with a wide network of sub-agents all over the country. Any non-compliance by the sub-agents may result in the HRA losing out on its security deposit.^[26] It has been proposed that the act mandate for the relationship of the HRA and sub agent to be governed by formal agreements.^[27]

Additionally, there is no provision with regard to auditing or grading of HRAs. The certificate issued by competent authority have a validity of five years and can be renewed later on.^[28] There is no mechanism which provides for evaluating or looking into the operations of the HRA during this period to see if they are doing all that they can for the purpose of the Bill i.e., protection of the interests of emigrants or if they are merely just complying with the basic requirements of law. The HRAs should be graded and ranked in order for prospective emigrants to avail the best HRA offering best opportunities. There should also be, apart from legal formalities, performance standards for evaluating if these HRAs deserve to get renewed.

Non Compliance With Human Rights

The Bill does not conform to the human rights principles.^[29] This is despite the fact that Chapter VII of the Bill seeks to address the welfare of Indian migrants through establishing a labour and welfare wing to deal with issues related to Indian emigrants.^[30]Additionally under Clause 27 of the Bill an emigrants' welfare society is to be established which will seek to provide legal services, create a digital record of all emigrants, provide emigrants with training and skill up gradation etc.^[31]The government has come up with the unique concept of "Sahayata Kendras" wherein the Indian Mission may also establish 'Sahayata Kendras' to address the various issues concerning Indian emigrants and provide services such as free help line, providing counselling services etc. These proposed measures are in consonance with the Migration for Employment Convention, 1949 and Migrant workers (Supplementary Provisions) Convention, 1975 although India hasn't ratified any of these conventions. However, no criteria has been specified as to in which countries these 'Sahayata Kendras' will be established, the bill can address this issue by specifying a criteria based on the population and vulnerability of Indian emigrants in a particular country.

All these provisions included in the Bill for welfare of Indian emigrants is the need of the hour and well appreciated. However, the Bill still does not conform fully to a human rights framework.^[32]

India is a signatory of the International Convention on the Protection of All Migrant Workers. Article 9 of the Convention mandates that right to life of the migrants and their family members shall be protected by the law.^[33] Additionally Article 10 of the Convention provides that neither a migrant nor his family member shall be subjected to degrading treatment or punishment.^[34]

Clause 31 of the Bill provides that any person who emigrates in violation of any provisions of the Bill, shall be liable to a penalty ranging from ten thousand rupees to fifty thousand rupees.^[35] In the 1983 Act, Section 24 which dealt with the 'offences and penalties' mandated a less severe penalty ranging from one thousand rupees to two thousand rupees.^[36]Moreover the central government is entitled to revoke, suspend or cancel the passport of the emigrant^[37], which may have the effect of infringing the right to life and livelihood of the emigrant.^[38]

The stricter penal provisions are indicative of the fact that the Bill does not take into account the socio-economic reality of the country and plight of the emigrant workers. Many of the emigrant workers are illiterate, unaware of law dealing with emigration and have inadequate bargaining power. They are subordinated, subjugated and made to work like slaves especially in the Gulf countries.^[39]

The Bill could also have made some specific provisions in regards to certain category of persons such as persons with specific physical disabilities and those of the third gender. Special care could have been taken for such persons, especially since many host nations may not be so friendly towards such persons. For instance, the Gulf countries have limited rights for persons belonging to the third gender.^[40] The Bill could have made appropriate provisions for helping such persons prepare better for such hostile work circumstances abroad.

Lack Of Gender Inclusivity

Women emigrants are discriminated on basis of gender, race, and are vulnerable to sexual exploitation.^[41] The Bill doesn't address the special needs and demands of the vulnerable female emigrants. This is despite the fact that the Bureau of Emigration policy and planning seeks to organize "programmes and activities to assist and provide for the special needs of the worker migrant workers"^[42].

However, the there is an overwhelming need for a more omprehensive, concrete and affirmative action on the behalf of the government to curb the exploitative practices that take place against the women emigrants in the destination country. It is to be noted that one of the goals of the United Nations' "2030 Agenda for Sustainable Development"^[43] is to promote the labour rights of women migrant workers and to also create safe and secure work conditions for them.

The Bill can take inspiration from our neighbouring country Nepal and its Foreign Employment Act, 2007. It prohibits "gender discrimination, lifts prohibitions on women working overseas, and establishes safeguards for women's safety and rights"^[44]. Women migrants now have access to information about "the employer's contractual obligations and migrant aid centres in their destination countries"^[45]. Additionally, in Laos the Ministry of Labour and Social Welfare has made it mandatory for the emigration officials to be trained in issues dealing with women's economic migration.^[46]

The increasing number of Indian women emigrants, especially in the healthcare sector necessitates to have special provisions for protecting women migrants in destination countries.

The proposed Emigration Bill is undoubtedly a step in the right direction, however certain changes are necessary. The preamble of the Bill needs to be more progressive and can take cue from the Migrant workers and Overseas Filipino's Act which states that "fundamental human rights and freedoms" of the Filipino emigrants are sacrosanct and inviolable.^[47] There are many issues with regard to HRAs that need to be resolved. The Bill needs to be more sensitive to the issue of immediate family of these emigrants and should include provisions for protecting them.^[48] Additionally, the Bill is silent on how to deal with the issue of migrants who go missing in the destination countries.^[49] The provisions are not gender inclusive and there needs to be "gender sensitive policy formulation"^[50] keeping in mind how vulnerable women migrants are. Moreover, India's reputation as an emerging developing country is bound to take a hit among the world community if such a domestic law is passed as it is in direct contravention of the afore mentioned ratified conventions and international instruments.

These are some changes should be addressed by the law makers in order to have a more comprehensive and robust mechanism in place for emigration in India.

The authors are students at National Law University, Jodhpur. Views are personal.